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Topics like gender parity are not just ‘women’s issues,’ panellists say

While books like “Lean In” have focused on a woman’s role in the workplace, more attention is needed on a workplace’s role in women’s lives, said panellists at Canadian Lawyer’s Women in Law Summit in Toronto on Feb. 12.

“The business model that we work under was designed for men, by men. And unfortunately it was designed for straight white men who have a wife at home who does everything, so a man can focus on his career,” said Dale Osadchuk, a partner at Davies Ward Phillips and Vineberg LLP. “I always hear, ‘Well, I’m the exception’ . . . . all the big firms began putting in place policies that they didn’t understand, so it almost became window-dressing — the perception of men being, ‘Well, now we’ve dealt with this.’”

A selective, “white-washed” history of women in the workplace — focused on those who are privileged enough to have a spouse stay home and raise children — has fed into the structure of law firms today, said Genevieve Boulay, counsel with Westaway Law Group.

“The panellists this morning have talked about it, and we’ve heard all of this before: The way that we have relationships at home needs to change, and our division of labour at home,” she said at the event, marker in hand as she collected suggestions from the audience.

“Firm management could take important steps to be great role models. The legal profession has some issues: We need to redefine success. We’ve inherited the certain socioeconomic, cultural context and that’s just kind of where we find ourselves, and maybe that needs to change, too. …. The onus of making these changes is not just on any one of these levels, and it’s definitely not the level of the individual.”

For example, Nikki Gershbain, chief inclusion officer at McCarthy Tétrault LLP, noted that many firms overlook efforts that might have the most impact. By prioritizing recruitment over retention — or by hosting discussions about diversity that don’t touch words like ‘racism’ or ‘transphobia — inclusion policies can be reduced to marketing campaigns, she said. While the “numbers game” of hiring was a trend for a while, it doesn’t work if people don’t get the opportunities they were promised when they are hired, she said, recalling her experience as the only queer person in a workplace, and how lonely she felt.

“Some organizations make the mistake of locating all of these policies and programs in HR or PR,” said Gershbain. “What that doesn’t take into account is the fact that diversity is a business driver and it is a leadership issue.”

Several panellists spoke to the importance of organizations collecting data beyond high-level demographics, such as how many people attend diversity events, whether performance reviews are having differential impacts, and whether men are taking advantage of parental leave policies.

At the individual level, people may bristle at the idea of systemic sexism, especially when their intentions are positive: Rebecca Bromwich, manager of diversity and inclusion at Gowling WLG, gave the example of a performance review calling a woman a “sweetheart.” While the sentiment may be harmless, it reflected the less-than-transparent performance metrics used by firms, which could allow unconscious biases to slip in. Those biases, panellists said, are held widely by men and women alike and must be overridden by conscious action. For example, the firm rejigged its partnership nominations to use specific forms, rather than reference letters

“There’s all kinds of principles and declarations, and I think they are good things, right? But there is something called virtue signaling,” Bromwich said. “We have our critical lens on the idea of signing on to declarations that can be somewhat empty.”

Gershbain noted that, as the joke goes, workers are interested in what their boss is interested in. So, she says, bosses need to show they are really watching how their employees address diversity.

“I think it’s time for the leaders, and the allies and the men to lean in, and to buy in, and to get off their rear end and take some action,” said Rose Leto, a partner at Neinstein Personal Injury Lawyers. “And, you know, it’s all nice to talk about what we can do, but they actually need to do it.”

Cassels partner explains how she propelled herself to the forefront of her field

Omokhodion, a partner at Cassels Brock & Blackwell LLP who focuses on financial services and banking law, says she has propelled herself to the forefront of her field by reminding herself to run her own race.

“It just means celebrating when others succeed, without always comparing yourself to the speed at which other people are going — or what they might be achieving or obtaining. It’s the sense of accepting this life, this career, this work— whatever we have — is my race to run,” she says. “It’s my business to grow. My practice to nurture — that I might build something that I might hopefully be proud of. A notion of knowing that I can do things my own way.”

Like a cross country course, Omokhodion’s path has been winding, and her success has taken work, she says. Coming from a family of lawyers and entrepreneurs, Omokhodion had long had an interest in business but also felt the pull of passions like literature, and later, litigation.

“I had the opportunity to try project finance, general finance and securitization. And it was funny — for someone coming from an arts background, with a love of languages and literature, I really took to business law, much to the surprise to some of my colleagues, friends and family. It challenged me, it interested me, it excited me.”

Again, her path took an unexpected turn when she ended up in Canada after growing up and launching a career in the UK.

“I’m now someone living in my third culture. I’m Nigerian — I’m the child of immigrants. I moved to the UK when I was a baby, and I grew up steeped in Nigerian culture. And I’m now an immigrant again to Canada, and a proud new Canadian as of last year,” she says. “All my professional life I’ve grown so used to being ‘the only one’ in a meeting, seeing very few people who looked like me . . . . as a woman and even more so as a woman of colour.”

Watching her parents go back to school and build a business has shaped her perspective on her career, says Omokhodion, who will be speaking about executing diversity and inclusion strategies at Canadian Lawyer’s Women in Law Summit on Feb. 12, 2020 in Toronto.

To ensure women continue to be represented in the legal profession, it’s instrumental for leaders to empower female lawyers.

To ensure women continue to be represented in the legal profession, it’s important for leaders to encourage discussion around professional needs and goals and to build strong mentor relationships for success, say leading women lawyers in law.“It’s important for women, especially as leaders at law firms, to look at other women working at the firm and identify them as potential sources of information as future leaders and to mentor those young women,” says Alisa Mazo, founder/lawyer at Mazo Chowbay in Toronto. “We, as women, need to encourage each other and see the potential future leader or a great future lawyer in each one of those young professionals within our organization.”

While the profession of law has traditionally been a male-dominated profession, this is no longer the case. In fact, more than half of law students are women, says Mazo.

However, research shows that at around the 10-year mark of practising law, women leave the practice, says Jessyca Greenwood, principal lawyer at Toronto’s Greenwood Defence. She says this could be because women face the barrier of juggling a demanding legal career with having a family.

Traditional gender roles dictate that women take on the domestic responsibilities, so this could be a unique barrier that women in law face. Greenwood says that firms need to be flexible to foster environments where women could thrive in their career and home life, and, fortunately, this is starting to change due to evolving firm cultures. By offering flexible work arrangements that allow lawyers to work from home or work outside of traditional business hours, the burden of balancing work and family is eased.

Stacy McLean, a partner at Blake Cassels & Graydon LLP in Toronto, says women in law need to convey their professional needs and goals to firm leaders to ensure there’s mutual understanding and an open flow of communication. She recommends being clear with the firm about the goals you want to achieve and what you need to reach those goals.

“I came back from a leave and a colleague, who was very well intentioned, tried to shift me away from a file that was going to be very time intensive over a short period because he knew that my husband had a busy work period as well,” she says. “I just made it clear that I wanted to work on that file and there was no issue with that. That was for my husband and I to work out — our home arrangements ­— and it was a great opportunity.”

For Greenwood, running her own firm for about a decade has enabled her to have children, set her own schedule, work on cases that interest her and build the type of practice she’s always envisioned; at Greenwood Defence, she’s committed to hiring and promoting women in criminal law. Similarly, Mazo says that, at Mazo Chowbay, where over half of the staff are young women, one of their mandates is to mentor and empower women, too.

“We have to be considerate of the single, solo, small-firm proprietors, the one-woman-shows, where they don’t have an opportunity to get the mentorship or the coaching that may be available at large firms,” says Mazo, citing that groups such as the [Ontario] Trial Lawyers Association, Criminal Lawyers’ Association or a province’s respective law society are great sources of networking and mentorship opportunities for women.

Forty years ago, when McLean’s mother was practising law, she says, such opportunities were nearly non-existent. Back then, she says, there might have been small gatherings of women lawyers sharing their experiences once, maybe twice a year. Now, formal and informal mentorship programs exist, there are targeted development sessions for women and different work opportunities and arrangements that didn’t exist when she observed her mother while growing up.

Having a diverse workforce of lawyers in terms of race and gender is also key for client happiness. Clients demand a variety of perspectives on their cases. According to Greenwood and McLean, firms’ cultures are starting to improve in this aspect.

A big step forward for women in law and in all professions is to shed any self-doubt because women are capable of any career goal they strive for, with extreme hard work, says Mazo. But expect nothing will ever be handed to you, she says.

“We are in courtrooms, we’re writing laws, we’re changing the law, we’re advocating for clients, sometimes more often than our male counterparts,” she says. “We [should] celebrate ourselves on a daily basis and highlight our accomplishments, not just on cases like International Women’s Day, which is wonderful, but every day is Women’s Day.”

It has been more than a decade since the Law Society of Ontario voted to enhance the retention and advancement of women, and some candidates for bencher say it’s time to tackle the issue again.

It has been more than a decade since the Law Society of Ontario voted to enhance the retention and advancement of women, and some candidates for bencher say it’s time to tackle the issue again.

Voter turnout in the bencher election is consistently lower among female-identifying licensees: In 1987, turnout was 58.4 per cent among men and 44.04 per cent among women, and by 2015, turnout was 35.7 per cent among men and 31.3 per cent among women, the law society’s election results said. Women and gender -on-conforming candidates also appear to represent less than half of this year’s candidates.
The Law Society of Ontario did not provide a gendered breakdown by deadline.

Still, Guelph, Ont.-based lawyer Andrea Clarke, who is running in the April 30 election for the law society’s new board, says women’s issues are a central part of her election platform. She recalled appearing in court five days after giving birth.

“I’m a mother of three young boys, all under the age of five. I’m a sole practitioner and I see the challenges for women,” says Clarke. “We’ve done so well for attracting more women to the profession over the years, which is fantastic, but it’s the retention of these women. The attrition rates are high. . . . I’d love to see a greater support system and network. For a lot of women, particularly in solo practices, if you’re going on maternity leave, it just doesn’t make sense to return.”

A law society working group recommended in 2008 that the LSO adopt a multi-year pilot project called the The Justicia Project, which got the support of 75 law firms, to support the retention of women in private practice. In addition to toolkits and guides to help retain women in the profession, the project spawned the Parental Leave Assistance Program, which gives new parents $750 a week for up to 12 weeks if they are eligible.

The project came on the heels of a report that found managing partners of firms were “overwhelmingly aware” that their firms were losing women in disproportionate numbers. As of 2014, The Justicia Project’s website said that while women accounted for more than 50 per cent of Ontario law graduates, they were less than 35 per cent of lawyers and about 20 per cent of all partners in law firms.

There are still issues facing lawyers who are women or gender-non-conforming, candidates such as Clarke say. She said she would like to see the law society’s existing mentorship program expanded to helping women and mothers collaborate on issues such as co-ordinating parental leave.

“It’s important that the benchers are truly representative of those that they speak on behalf of. So it is important that you have mothers, you have sole practitioners . . . if you want to ensure policies are challenged or are clearly thought through,” says Clarke. “There has been progress over the years, but there still needs to be quite a bit more.”

In the last half of 2018, 61 per cent of complaints to the law society’s Discrimination and Harassment Counsel were made by women, a Feb. 28 report to Convocation said. At a March 6 event at the LSO celebrating International Women’s Day, a panel lamented the lack of women entrepreneurs in legal technology companies.

Social media debates among lawyers have targeted issues such as dress codes and an article suggesting women may not desire careers like law where they “must start early, work very hard, and make many sacrifices.” After an online campaign about disparate robing areas in courthouses, the law society on Feb. 20 said it would implement a gender-neutral robing area in Osgoode Hall.

Lawyers have also played a role in addressing these issues in other professions over the past year, amid landmark 2018 lawsuits around pay equity from the Supreme Court of Canada and Human Rights Tribunal of Ontario.

Shalini Konanur, executive director and lawyer at South Asian Legal Clinic of Ontario, who is running for bencher, says that, while the conversation has opened on issues such as the unisex barrister’s room, there are still larger issues for benchers to confront. She says the law society also plays “a huge role” in issues such as diversity on the bench and improving data collection. The province said in 2017 it would work with the law society to improve diversity in judicial appointments.

“I think the law society could be doing a bit more on this issue — they’ve had little bit too much of a piecemeal approach to it,” says Konanur. “The glass ceiling is not gone.”

With the steep rise in in-house legal departments, rapidly evolving technology, heightened use of alternative legal providers and the explosion of new regulations as businesses continue to expand across the globe, a new report from McCarthy Tétrault recommends legal service providers reinvent to adapt or die.

With the steep rise in in-house legal departments, rapidly evolving technology, heightened use of alternative legal providers and the explosion of new regulations as businesses continue to expand across the globe, a new report from McCarthy Tétrault recommends legal service providers reinvent to adapt or die.

Internationally, regulations are proliferating while businesses expand across borders, says the report. Meanwhile, the authors say, in the digital realm, data is multiplying and creating liability for businesses. That means there is a huge increase in corporate legal departments that heightens the need for other lawyers to integrate their expertise with the business world.

“This is a historically unique time for lawyers,” says the report, which is authored by three lawyers at McCarthy Tétrault: Susan Wortzman, a partner and founder of MT>3; Matthew Peters, a partner and national innovation leader; and Judith McKay, the chief client and innovation officer.

The report says that, between 1997 and 2017, the number of in-house lawyers tripled to 105,310 from 34,750 — growing sharply since the 2008 financial crisis. The growth of in-house lawyers was seven-and-a-half times faster than that of law firms, says the report.

Corresponding to this upsurge of in-house lawyers is a rise in the use of alternative fee arrangements and other methods of reducing the external legal cost for in-house departments, says the report. It also states that alternative legal service providers are, therefore, seeing more work with 19 per cent of legal departments outsourcing to them — a number that rises to 38 per cent for large legal departments.

“One of the most significant changes in the last 20 years is the insourcing of legal capabilities into companies,” McKay told Legal Feeds.

Another survey cited in the paper says the majority of Canadian GCs did not expect their in-house departments to grow in the next year. McKay says this raises a question.

“How do you keep driving efficiency and effectiveness while meeting the business needs?” she asks.

One way of becoming more efficient while meeting business needs involves adapting to technological innovation, becoming an expert in the tools it produces, says the report. Alternative service providers help, too. But most important is a greater collaboration between legal departments, law firms, alternate service providers and technology providers, says McKay.

“What we truly need is to truly rethink how legal services are delivered,” she says.

The report says that, in the digital realm over the last two years, more data has been created than in all time previous and 1.7 megabytes is being created every second for every person on Earth. The authors predict that, in five years, there will be 50 billion smart connected devices capable of collecting, sharing and analyzing data. This growth in connectivity and the data it leaves behind will mean growth in business for lawyers, as it leads to an “exponential” expansion in contracts businesses “need to draft, comply with and manage,” they write.

“Digitization creates tremendous opportunities to collect, analyze and monetize data using artificial intelligence but also tremendous risk if not implemented thoughtfully,” the report states.

“Doing discovery for litigation is impossible to do now without machine-learning technology,” McKay told Legal Feeds. “It creates tremendous value, because all of this data is extremely valuable. But making sure that you get the opportunities from the data and in a legally defensible way is extremely important and complex as well.”

The authors cite a 2017 survey of more than 200 in-house lawyers — mostly GCs and heads of the legal department — which found that “innovative service delivery through technology” was more important than personal relationships, corporate social responsibility and the size and reach of international networks when it comes to choosing external law firms with whom to work. Another survey from 2018 from Acritas showed that 69 per cent of U.S. corporate legal departments surveyed said they hadn’t seen their outside law firms and other legal service providers innovate in the last year.

“To be relevant, law firms need to accelerate their commitment to innovation and transformation,” says McKay.

Globalization has stretched corporate clients across the world, producing as much risk as can come from every nation on Earth’s individual legal systems plus much more. The paper illustrates the extent to which regulations are multiplying. In 2003, there were 2,000 regulations worldwide. That increased to 16,000 as of 2018. Non-compliance will sting more than ever; for example, four per cent of annual global turnover or $34,795,945 for violating the EU General Data Protection Regulation and $10 million for violating Canada’s Anti-Spam Legislation.

Inhouse counsel say managing regulatory compliance is their biggest business law challenge, and data security, privacy and other technology-related issues are among the top as well.

“Regulations are exploding,” McKay says. “The consequences of non-compliance are greater than ever before with reputational risks and massive fines.”

“So the stakes are very high. And that’s not even counting the reputational impact that can happen with being non-compliant,” she says.

From my experience on Bay Street, the biggest roadblock to true meritocracy and inclusion is unconscious bias.

It has been over a year since Hadiya Roderique wrote Black on Bay Street, shaking Bay Street to its core. It has been almost a year since I wrote my reflections on the Law Society of Ontario’s statement of principles. There is no doubt these articles – and more recent ones – have sparked a discourse. The feelings and issues are easy to articulate, but the next steps for our legal profession are not.

From my experience on Bay Street, the biggest roadblock to true meritocracy and inclusion is unconscious bias.

While I commend the Law Society of Ontario and law firms for taking important steps to move the dial forward, progress is either not moving fast enough or has stalled. Lexpert and other rankings still do not mirror the profession’s diversity. In 2016, 29.4 per cent of lawyers in Ontario were racialized, yet less than 7.8 per cent of all law firm partners were racialized (partners of all practice sizes and practices). Racialized lawyers are over-represented in solo practice and under-represented in law firm partnerships.

Anecdotally, a bencher recently stated at Convocation that it will be difficult for women and members of other underrepresented groups to become leaders at Convocation if bencher term limits are reduced from 12 years to eight. It seems this bencher meant to imply that women and minorities cannot build traction as quickly as their counterparts. If true, the statement is a sad reflection of our society. If not, it is troubling that our leaders would make such a statement.

The problem of unconscious bias is best illustrated in a U.S. study conducted in 2014. Sixty law-firm partners were given an identical memo written by a third-year associate named Thomas Meyer from New York University Law School. Half the partners were told Meyer was White. The other half were told he was Black. The partners were asked to correct the memo and provide a rating out of five. White Thomas Meyer received an average rating of 4.1/5. Black Thomas Meyer received an average rating of 3.2/5. Partners found more errors in Black Thomas Meyer’s memo.

The study is powerful because law firm partners (considered to be at the upper echelons of our profession) rated the exact same memo differently based on their unconscious bias. When they expected to find errors (with Black Thomas Meyer), they found them. Although this study is American, I expect the results would be the same in Canada.

This bias is exactly why some lawyers succeed and others do not. We as a profession are subconsciously more critical of the work done by female, racialized and indigenous licensees. I suspect that means we invest in them less due to our ‘objective’ belief that they are not as strong.

The Twitterverse and beyond has highlighted the horrible courtroom experiences of female or racialized lawyers, where these lawyers are misidentified as an assistant, client or the accused. More dangerous than these comments is that the lawyers making them are also likely not investing in female and racialized lawyers, making it harder for equity-seeking lawyers to succeed in this profession since law is the ultimate apprenticeship.

You cannot self-teach how to cross-examine a witness or write a professional but firm letter that preserves your client’s interest. Consider that recently that the Law Society rejected the idea of eliminating articling because of the broadly held belief that experiential learning under a practicing lawyer is fundamental to ensuring competence. Under our apprenticeship model for law, we need to ensure that all lawyers have equal access to training and mentorship.

This means that the next frontier for our profession is combatting unconscious bias. All within our profession can contribute:

Firms can implement work allocation systems, create additional mentoring or sponsoring programs for equity-seeking groups and deliver unconscious bias training to reviewing lawyers at regular intervals, including before reviews.

Clients can demand to see statistics on the demographics of the lawyers billing on their files and taking on lead counsel roles. Clients should do something if the demographics of counsel do not reflect the demographics of the legal profession more broadly.

Judges and adjudicators can also ensure they receive unconscious-bias training at regular intervals and ensure that they apply a consistent approach in the way they treat all counsel.

Talent is not limited to a specific population. There should be no reason why those who succeed in our profession are from disproportionately from one demographic. We as a profession can do better.

Collaborative office spaces and flexible working arrangements aren’t just aspects associated with Silicon Valley tech startups anymore — they are features, along with also having a private office for independent work, that young lawyers desire, according to a recent report from the United States called What Millennial Attorneys Want.

Collaborative office spaces and flexible working arrangements aren’t just aspects associated with Silicon Valley tech startups anymore — they are features, along with also having a private office for independent work, that young lawyers desire, according to a recent report from the United States called What Millennial Attorneys Want.

Clients expecting faster results and lower legal fees results in a need for a modern workflow, and office space should reflect this culture that tech-savvy millennials help drive. Meeting these types of working expectations could be a factor in the attraction and retention of top talent, and clients as well.

“With younger people, there is no doubt they’re more adaptable to sitting anywhere,” says Maria Scarfo, managing partner at Blaney McMurtry LLP in Toronto, who in 2014, faced the crossroads of deciding to move the firm to new office space or renew the lease and renovate. “You have to decide what fits the business model and there’s lots of variety, but it’s all linked to technology.”

Scarfo says that while Blaney McMurtry isn’t a fully open concept space, it’s equipped with lounges, open spaces and boardrooms for group discussions, but lawyers at the firm still have private offices to sequester to when concentration is needed for the task at hand. Similar to what the report stated, upon surveying the young lawyers at her own firm, she says that they also prefer having the option to work in a private office.

With the implementation of modern amenities such as upgraded Wi-Fi, laptops with docking stations and virtual private network capabilities, lawyers of all ages are capable of being nimble and versatile with where they work.

The report, produced by architecture firm Gensler, indicates that 93 per cent of the millennial lawyers surveyed favour having an office. To break that down, 66 per cent say they think partners should have larger offices, while associates should have smaller offices. Twenty-seven per cent say all lawyers, regardless of seniority, should have the same size office.

“I personally crave flexibility and choice in my work environment,” says Laura Poppel, an associate at Borden Ladner Gervais LLP in Calgary. “Some days I like the private office space where I can just hunker down at my desk to get work done without interruption, but other days, I want to go work in a comfy chair, surrounded by co-workers, where the environment is a bit more lively.”

Poppel says that BLG is adapting to these millennial-driven working trends. The firm’s Toronto location has a new space called “the zone” — a lounge with embedded technology that provides workers with a space to work collaboratively.

She adds that constantly working alone causes her to feel lonely and like “a cog in the wheel.” She knows, first-hand, that buzzing, communal workspaces within the firm alleviate these feelings and truly foster teamwork among peers.

But how much of an impact does the space really have on the way lawyers work?

Collaboration is a noteworthy value millennial legal professionals have. According to the report, the majority of survey respondents ranked being mentored by partners as a top priority for why they come to the office, followed by coordinating with their team and gaining exposure within the firm.

In fact 83 per cent of respondents indicated they would only like to work remotely for one- to- two days a week, favouring being in the office for the majority of the work week. Flexible working arrangements — but not a full-time work-at-home work arrangement — proved to be favourable in the report’s results.

Poppel says having the flexibility to choose where to work, including from home, helps elevate her mental state. However, with the demographic age gap of associates and senior partners, values differ, and younger lawyers worry about getting face-time with partners at firms.

“I think more and more about what’s important to millennial lawyers would be being in a work environment that really looks at the results, as opposed to just doing face-time, just for face-time’s sake,” says Laura Williams, founder and principal of Williams HR Law in Markham, Ont. “I do believe the virtue should be all about the results; it’s all about servicing the client in the best way possible.”

She says that millennials need to feel connected to the meaning of their work, and for this cohort, this value could be reflected in the space in which they work and with flexible working arrangements.

Another concern about lawyers having flexible work arrangements is dealing with confidential information, which is part of the nature of the job. The solution? Going paperless and embracing technology and digitized work.

Traditional law firms are typically used to dealing with hard copies of documents and court materials, but being able to access these on a tablet, for instance, not only allows for portable work, but for additional digital security with passwords and encryption.

Having the ideal firm environment, complete with a desirable working setup and flexibility, shows innovation, which could not only be a draw to future talent attraction and retention, but also for potential clients.

Showing a modern office space, with up-to-date technology and tools, plays a role in drawing clients who are often interested in seeing where lawyers provide services, and are given a sense of comfort coming into an area with visual confirmation that their files are being properly worked on, says Williams.

While having the right firm space is significant, ultimately, it’s the values from upper-level management that really shape the firm’s culture, she says.

“Space can promote a certain culture, but the space and configuration of the office doesn’t necessarily beget the culture. There has to be an establishment and adherence to some key values that manifest from the top down,” says Williams.